Mr. Speaker, in this debate I would like to offer my observations on judicial nominations, on the issue of take note debates and on the role of a parliamentary secretary and the appearance of ministers at committees.
The first is with respect to judicial nominations and the prerogative of the Prime Minister at this point to make judicial appointments without the supervisory role of Parliament. This comes out of some history where a prime minister did not have to be overly worried about the social views of a potential nominee for a judicial appointment because judges were expected to operate in the realm of what was called black letter law.
Black letter law is a very narrow view of what the common law says on any particular issue. There are limitations on what is or is not admissible as evidence. There are limitations on what can be considered and how one interprets the law. Therefore, the prime minister of the day could sit back, relax and not anticipate that a judicial intervention into an area of social policy would significantly impact the prerogatives of Parliament.
That brings me to the issue of the supremacy of Parliament. Historically the supremacy of Parliament in the area of social policy direction was just that. It was supreme and courts merely interpreted what Parliament must have meant in the circumstances.
However, that was then and this is now. We have a Charter of Rights and Freedoms which has given judges a far greater scope to shape social policy. A judge can put a particular social policy through a charter lens and read an interpretation into a particular piece of legislation. Probably one of the more outstanding examples is that of sexual orientation, where clearly Parliament thought about putting that into the charter and chose not to, but subsequent various judicial interpretations read sexual orientation into various statutes and pieces of common law.
This has resulted, as some say, in what is called a dialogue with Parliament. The charter interpretations are a text that dialogues with this body. Some have interpreted it as more of a monologue and that the judges are having the final say. I am more of the view that there is some give and take, some push and pull between Parliament and the judges. As I say, reasonable people can disagree on the role of the supremacy of Parliament. I think it is fair to say that the supremacy of Parliament has somewhat been eroded by the Charter of Rights and Freedoms.
I raise these background issues in the context of the appointment of judges because when judges were merely black letter law judges we really did not have to worry about what their social views were. Now we do have to be concerned about what their social views are. Their views on particular areas can shape social policy and shape it in directions that possibly Parliament would not necessarily wish to go. That argues for a review of the nomination of judicial appointments by Parliament.
What is the problem with this? I suppose the problem we all look at is the circus that we see in the United States with the congressional reviews of judicial appointments. We see that certain members of congress turn it into, shall we say, a mini-business to ferret out the dirt on various nominations. No stone is left unturned. No embarrassing marijuana conviction or sexual liaison is left to where it should be, namely the private realm of those individuals. Rather it is paraded by the media before the public and it destroys the reputations of very good men and women.
I think there is an intense reaction to this circus that we see to the south of us, these rather graphic examples of turning good men and women away from letting their names stand for judicial appointment. The irony here is that rather than in fact expanding the democratic process, it is actually a turnoff. We see this in voter apathy and in resistance on the part of American electors to engage themselves in congressional elections.
So the issue is this: How can we review a nomination thoughtfully, responsibly and carefully and find out the views of these men and women on important social issues while not turning it into a circus that essentially forces them to withdraw their names from nomination? The short answer to that is, I do not know. Presently we have a system that is very secretive. It is almost like electing a Pope. Possibly we should outfit the Peace Tower to emit black or white smoke on the selection process.
It is not without its politics. I have been practising law for a long time and have some feel for the intensity of politics that goes into the selection of judicial appointments. It is a high art form. It is very intense and I would say very elegant, but it is also very ruthless. Politics is involved in judicial selections, except that the public has no say at all.
The legal community has its own criteria and its own way of doing its self-selecting, but that is based upon its own views of what a competent judge should be. I would argue that by and large the men and women who serve on our benches are very capable people and give very good service to the public. Nevertheless, the public has no say in their views.
So how the people's representatives, those of us in this Chamber, would not turn this process into a circus is the only hesitation I have in this particular issue, but in my view it should be examined. These appointments are of great significance to Canadians.
The second point I want to make is with respect to take note debates. Personally I like take note debates. I like those opportunities. I think they are important debates. What I do not like about them is, first, the short notice that we get. I would like a bit of time to reflect on whatever the debate issue might be. The second issue is that I do not particularly like speaking at 3 o'clock in the morning. It seems that we lay on these take note debates and they go on and on. I do not think that people are at their best at 3 o'clock in the morning. I am certainly not.
The third thing I do not like about take note debates is that there is no formal way in which the government responds to the content of the debate. These debates are usually on very important issues. One example is whether we do or do not go to war. When I first arrived here I assumed, basically on a historical reading, that it was Parliament that decided whether we did or did not go to war. Much to my surprise, Parliament has not decided in a long time, probably since the Korean war, whether we go to war or go to peacekeeping missions. Frankly, I think that the people should have a say. After all, it will be their sons and daughters who are going to be killed or injured in these hostilities. I frankly think the take note debate should be something more than simply a comfort zone for the executive.
On the point about excluding parliamentary secretaries from committees, I do not think that is necessarily a good idea. Properly instructed, a parliamentary secretary can inform a committee of the views of a minister and the views of a department. I appreciate that some parliamentary secretaries are overly partisan and overly zealous, but possibly with some instruction that can be changed.
Finally, on the point about a minister being present for clause by clause, I was there for Bill C-36, probably one of the most important bills that this Parliament has engaged in. While the parliamentary secretary did an able job on 167 amendments, I thought it appropriate that the minister be there to put forward those amendments.
These are my views on those three issues. I appreciate the opportunity to make these comments.